for remission of liquidated damages or any part thereof. Griffiths v. U. S. (1932), 74 Ct. Cl. 245. Where a contract for delivery of goods exacts liquidated damages in case of delay, each lot to be considered a unit for the purpose of calculating damages, liquidated damages are to be determined for each day's delay beyond the time specified for each lot at the rate agreed upon, and the lots may not be aggregated as one lot for that purpose. Rosenberg v. U. S. (1933), 76 Ct. Cl. 662. Where by contract or by law an act is to be performed within a specified period of time from or after a particular day or event, the time limit for the performance of the act is, under the modern doctrine of interpetation to be determined by excluding the particular day or the day of the particular event specified. International Manufacturers' Co. v. U. S. (1937), 85 Ct. Cl. 683. Contract terminated.-Where, upon failure of the contractor to complete a Government construction contract within the contract time, the Government terminated the contract and completed the work pursuant to a provision in the contract therefor and for payment by the contractor of any excess in the cost of the work to the Government over the contract price, the contractor was not liable for liquidated damages under a provision of the contract for liquidated damages for delay in completion of the work by him. The Fidelity & Casualty Company of New York v. U. S. (1935), 81 Ct. Cl. 495. The plaintiff was surety on the bond of the Murphy Plumbing Co. for the performance of its contract with the Government for certain plumbing in a United States veterans' hospital. Under the contract the Government, for lack of diligence in the performance of the contract, could either terminate the contractor's right to continue performance and have the work completed at the contracttor's expense, for any extra cost, or it could permit the contractor to continue and complete performance and then charge it liquidated damage for any delay in completion. After part performance the contractor abandoned the work, and the Government terminated the contract, and permitted the plaintiff to complete the work. Held, that the termination of the contract eliminated the liquidated damage clause, and that the Government was therefore not entitled to liquidated damage for delay in the completion of the contract work. Commercial Casualty Insurance Co. v. U. S. (1936), 83 Ct. Cl. 367. | Delays in general.-A contractor is not chargeable with liquidated damages because of delay in the performance of his contract, if the delay was caused by the other party to the contract, or is attributable to both parties, and where both parties are responsible the courts will not attempt to apportion the delay between them. Bethle hem Steel Co. v. U. S. (1932), 75 Ct. Cl. 845. Where delays caused by the respective parties to a contract are capable of ascertainment, the contractor, in order to be relieved of liquidated damages for delay, must show lack of responsibility for the delay. Francc-American Construction Co. v. U. S. (1932), 76 Ct. Cl. 132. Where both parties are responsible for delay in completion of a contract and it is impossible to ascertain the true balance by setting off one against the other, no liquidated damages can be assessed. Sun Shipbuilding Co. v. U. S. (1932), 76 Ct. Cl. 154. Delays chargeable to contractor.— Where a subcontract sets no time for delivery of the articles which are to be employed in the prime contract, the Government contractor is not in position to plead that the delay caused by the subcontractor was beyond his own control. Hickey v. U. S. (1928), 65 Ct. Cl. 729; MacDonald et al. v. U. S. (1932), 74 Ct. Cl. 572. A contractor is not relieved from his obligation to install a specified kind of fixtures merely because of their cost or of their being out of stock and more difficult to obtain than they otherwise would have been; nor is he relieved of liability for liquidated damages for delay in the procuring and installation of such fixtures beyond the contract time for completion of the work where he reasonably could have procured and installed them within the contract time. Griffiths v. U. S. (1933), 77 Ct. Cl. 542. Delays chargeable to Government. Where a contract provides that in assessment of liquidated damages contractor shall receive credit for all delays which contracting officer may determine to have been due to action of U. S. or other unavoidable causes, it shall not be construed as a basis for action by contractor against U. S. for damages, but as merely affording credit to contractor against its own delays. Wheeling Mold & Foundry Co. v. U. S. (1927), 63 Ct. Cl. 353. Where a Government contract provided for completion of the contract work within a specified period of time and for liquidated damages for delay in completion of the work, and the time for completion was extended by the Government for a period equal to such part of the delay as was caused by the Government, the contractor was liable for liquidated damages for the additional delay in the completion of the work. Schuler & McDonald v. U. S. (1937), 85 Ct. Cl. 631. Delays excusable under contract.Under a contract excusing the contractor for delays due to unforeseeable causes, delay due to a railroad freight embargo established by orders of the Interstate Commerce Commission and not within the power of the contractor to prevent is not a delay charge able against the contractor. Arundel Corp. | ment. v. U. S. (1934), 79 Ct. Cl. 343. Waiver by Government.-Partial occupancy of an unfinished building, where the Government has not yet accepted it, is not a waiver by the Government of liquidated damages for delay in completion. Hickey v. U. S. (1928), 65 Ct. Cl. 729; MacDonald et al v. U. S. (1932), 74 Ct. Cl. 572. Mistake.-Federal harbor dredging contract, made under mutual mistake of fact as to quantity of hardpan in area to be dredged, was voidable and could have been rescinded by contractor. Parties contracting on faith of erroneous assumption that certain state of facts exists should be relieved from their bargain, whether mistake is intrinsic or extrinsic or whether it affects identity or quality. To warrant equitable relief from contractual obligation, mistake of fact must have been material, animated and controlled parties' conduct, and gone to essence of object in view, and court must be satisfied that complainant would not have assumed such obligation but for such mistake. In re Construction Materials Corporation (D. C., 1936), 18 F. Supp. 509. Modification or supplemental agreements; consideration.-Where the provisions of a contract are changed by a subsequent agreement between the same parties, such agreement has no force and effect unless there is some consideration moving to the party adversely affected by such changes. Nor is the second agreement made valid by the fact that the first contract is not completely performed. Vulcanite Cement Co. v. U. S. (1932), 74 Ct. Cl. 693. Where due to delays by Government a supplemental contract is entered into increasing the price of the work remaining to be done, the breach furnishes the basis for a new consideration. See Worthington Pump Corp. v. U. S. (1928), 66 Ct. Cl. 230. American Bridge Co. v. U. S. (1931), 72 Ct. Cl. 344. Where, in the performance of a Government contract, there were mutual delays preventing completion within the contract time, and the contractor, in order to secure an extension of the time for performance, and under protest, signed a supplemental contract agreeing to pay a certain percentage of the contract price as a consideration for such extension, the contract was without consideration, and void. Camp Sales Corp. v. U. S. (1933), 77 Ct. Cl. 659. Bausch & Lomb Optical Co. v. U. S. (1934), 78 Ct. Cl. 584. Contract price. Where delays have occurred in the progress of agreed work, and a supplemental contract is entered into extending the time for completion and fixing a new contract price, the presumption is that the new price included compensation for the delays previously occurring. Snare & Triest Co. v. U. S. (1932), 75 Ct. Cl. 326. Duress. Where under duress by Government officials a second contract is entered into under the terms of which the contractor receives less compensation, the contractor is not estopped by receipt and retention of the lesser amount from continuing to assert its claim under the original contract. Farmers & Ginners Cotton Oil Co. v. U. S. (1932), 76 Ct. Cl. 294. Liquidated damages. Where a contract supplemental to the original contract is entered into cancelling a portion of the quantity of articles to be manufactured and delivered under the original contract, reinstating them in the supplemental contract at a new price, and omitting the clause carried in the original contract for liquidated damages in case of delay, the contractor is not liable for liquidated damages on the articles so reinstated. Bethlehem Steel Co. v. U. S. (1932), 75 Ct. Cl. 845. Performance; authority to extend time.When a board authorized by the contract to entertain a request for extension of time for performance, receives and passes upon such request on its merits, the provision that the request must be presented within a specified time is waived. Where the decision of a board authorized to determine the responsibility for delays is by the contract made final, and there is no proof of bad faith on its part, the contractor may not recover damages for the delay which the board has found him responsible for. Pope v. U. S. (1932), 75 Ct. Cl. 436. (1) The provision in a contract that the decision of a designated officer or officers as to extensions of time for completion shall be binding upon the contractor, is a valid one and in the absence of fraud or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment, their decision in the premises will not be set aside by the court. (2) This rule is not affected by the failure of the contractor to apply for an extension within the time set by the contract, such failure operating under the terms of the contract merely as a waiver by him of the right to an extension. Carroll et al. v. U. S. (1932), 76 Ct. Cl. 103. The execution of a contract for the Government by a contracting officer for compensation of the contractor for alleged extra services or expenses theretofore rendered or incurred in the performance of a prior conEnforcement.-Government cannot tract was not within the authority of such insist on completion of contract work which, officer, and the contract was void for want for its own convenience, it prevents till after of consideration on the part of the Govern- I expiration of time fixed for performance. Leary Const. Co. v. U. S. (1927), 63 Ct. Cl. | engines, the contractor met all the require206. Contractor may refuse to continue work without responding in damages where Government prevented completion till after expiration of time fixed for performance, Id. Where the action of Government inspectors in grading and rejecting hay was so arbitrary, capricious, and erroneous as to render performance by the contractor impossible under the terms contemplated by the contract, the contractor was relieved from the obligation of performance. Edwards v. U. S. (1934), 80 Ct. Cl. 118. Limitation of time.-Where the Government agreed to furnish the necessary foundations for structural framework to be erected by the contractor, and neglected to furnish the foundations in sufficient time to enable the contractor to proceed at the agreed rate, the delay was unauthorized under the usual clause in contracts excusing delays on the part of the Government, there being no change in specifications for the foundations. American Bridge Co. v. U. S. (1931), 72 Ct. Cl. 344. Where time is of the essence of a contract and the Government by its delay prevents performance by the contractor within the contract time, such delay by the Government will operate to waive the time limit and give the contractor a reasonable time in which to perform. But where the necessary approval of a contract by a superior officer was delayed by the Government beyond the date fixed for commencement of the contract work, and the delay did not prevent performance by the contractor within the contract time, the time limit for performance was not waived, but the contractor was entitled to an extension of the contract time equal to such delay. Griffiths v. U. S. (1933), 77 Ct. Cl. 542. Where one party to a contract demands strict compliance by the other party as to the time limit for performance, he must comply with all the conditions of the contract necessary to enable the other party to so perform, and failure on his part to do so will operate to waive the time limit and permit performance within a reasonable time. Camp Sales Corp. v. U. S. (1933), 77 Ct. Cl. 659. ments of the contract except a requirement that the bearings should not pound nor heat, and the pounding and heating of the bearings were due, not to any fault of the contractor, but to preexisting defects in the subbases and crankcases of the engines, the correction of which was not within the requirements of the contract, the contractor is entitled to the contract price for performance. Acme Machine & Welding Co. v. U. S. (1936), 83 Ct. Cl. 331. Abandonment of contract.-Exclusive contractor for laundry work at Army cantonment held not entitled to recover profits lost by abandonment of work. National Laundry Co. v. U. S. (1927), 63 Ct. Cl. 626. Alteration and improvement of leased premises. Where a written lease of a building by the Government for postoffice purposes was canceled by the Government in accordance with a right of cancellation reserved in the lease, the lessors are not entitled, in the absence of a provision in the lease therefor, to payment by the Government of any part of the cost of alterations and improvements made by them as an inducement to or condition of the Government's entering into the lease. Goldstein v. U. S. (1934), 79 Ct. Cl. 477. Bonus.-Contractor manufacturing articles for Government may recover "premium" provided for deliveries in certain months where deliveries were made during months stipulated. Littauer v. U. S. (1927), 63 Ct. Cl. 112. Cancellation by Government.Shipping Board held not excused from performing contract for fuel oil because of decrease in business. Atlantic Gulf Oil Corporation v. U. S. (1928), 64 Ct. Cl. 162. Though there might be obligation under fuel oil contract to take oil left in ground, uncertainty of quantity precluded money judgment. Id. Plaintiff, as the lowest bidder, contracted with the Navy Department to supply certain railroad ties. After a portion of the ties had been delivered and paid for, the Government notified plaintiff that the contract "was erroneously awarded to you," and "any portion of the ties called for Where impossible.-W here the under this contract which have not now Government specifications for balloon cloth been delivered are hereby canceled." Deare found by the contractor, and are in fact, | fendant proceeded to purchase ties elseimpossible of performance by him or anyone eise, the Government may not require per formance under revised specifications at the original price without the consent of the contractor. Rosenberg v. U. S. (1933), 76 Ct. Cl. 662. Recovery by contractor; in general.Where in the performance of a contract with the Government for furnishing and installing new crankshafts for old lightship compressor where at a lower price, and plaintiff was compelled to sell the undelivered portion on a declining market. Held, plaintiff entitled to recover the difference between the market-price and the contract price, together with certain underpayments on ties delivered and accepted. Briggs & Co. v. U. S. (1932), 74 Ct. Cl. 347. Where the proof is that no profit could be made on raw material left on a contractor's The court held that even though the plaintiff were otherwise entitled to recover for the Government's cancellation of the contract in suit, the plaintiff could not recover, for the reason that the evidence failed to establish the loss sustained by reason of the cancellation. White, Receiver, v. U. S. (1936), 82 Ct. Cl. 218. hands by reason of a cancellation of his contract with the Government, and in consequence thereof it was converted into a finished product for his own use and sold, recoverable damages include the difference between cost and the market price at time of breach, and actual charges incurred in connection with handling of the raw material, such as cartage, storage, and freight. Baker Food Products Co. v. U. S. (1932), | expediting performance of World War con75 Ct. Cl. 591. Cancellation by the Government of calls by it on the contractor for deliveries under the contract constituted a breach of the contract, for which the contractor is entitled to damages resulting therefrom. Edwards v. U. S. (1934), 79 Ct. Cl. 436. Where the contractor, for the purpose of tracts for production of war supplies, and at the suggestion and urging of the Government officer in charge, reasonably increased its plant and equipment in proportion to the supplies contracted for and ordered by the Government, and such contracts and orders were subsequently canceled by the Government, the contractor is entitled to recover damages sustained by reason of such cancelation, including loss from such enlargement of its plant and facilities for perform but not on account of anticipated future contracts or orders, and not including a profit upon the construction cost of such enlargement. American Propeller Co. v. U. S. (1936), 83 Ct. Cl. 100. Contingent compensation.-Where a contract for designing and production by the plaintiff of a number of airplanes of a particular type for the Government provided that as a further consideration for the planes in addition to the fixed base price specified in the contract the Government should pay the plaintiff certain percentages of the prices or cost of any planes of the same design thereafter manufactured by or for the Government, there was a sufficient consideration for such contingent additional compensation. On cancellation of contracts to supply Government with airplane propellers during war time, manufacturer could recover loss resultant from enlargement of plant and installation of additional facilities which Governance of contracts and orders then in hand, ment officials suggested were necessary and which were justified in view of size of orders and need for speed; amounts expended for purpose of expediting production, for repairs, alterations, additions, and betterments on leased premises which were used as manufacturing plants, less suitable proportion ap plicable to propellers completed and shipped; cost of machinery and equipment purchased to expedite production of propellers, less suitable deduction on account of propellers completed and delivered, and further deduc tion of salvage value; difference between salvage value and cost of kilns which were installed to expedite completion of contracts, less due allowance for propellers completed and delivered; amount expended for dies which were made for special purpose of cutting copper tips for propellers and which had only nominal junk value after cancellation, less proper allowance for propellers completed and delivered; amount expended for clamps purchased in excess of normal requirements and in anticipation of orders and contracts never received from Government; and losses sustained by reason of purchase of extra motor trucks to increase facilities of plant and installation of boilers and equipment in plant to expedite production of propellers; but could not recover profit on loss which was sustained when Government canceled contracts, in absence of special agreement. American Propeller & Mfg. Co. v. U. S. (1936), 83 Ct. Cl. 100. In the case of improper cancellation by the Government of a contract with it for supplying cloth, before any deliveries have been made, the damage or compensation to which the contractor is entitled on account of the cancellation is the fair market value of the contract when canceled, together with the difference between the cost of any materials acquired for use on the contract and their fair market value at the time of the cancellation. A contingent fee to a contractor is valid where there has been a valuable consideration therefor and the contractor has performed his part of the contract. Martin Co. v. U. S. (1936), 84 Ct. Cl. 54. Cost plus items.-Attorneys' fees paid by contractor in effecting settlement with subcontractor requested by contracting officer held part of cost for which contractor may have reimbursement. Central Const. Corp. v. U. S. (1927), 63 Ct. Cl. 290. Fees of attorneys employed by contractor to defend suit for false arrest held not part of cost of work notwithstanding contracting officer's approval. Id. In computing cost-plus contracts for construction of battleships and destroyers, income and excess-profits taxes should not be included. (1928) 35 Op. Atty. Gen. 419. Damage to leased premises.Plaintiff leased its hotel to the Government, which intended to use it for a hospital, the lease providing "that the lessee agrees to maintain said premises, except necessary repairs to outside of main building, during the period of its occupancy, and the lessor grants to the lessee the right to make such alterations to the interior of the building, not such as to affect the permanent character of the building, as may be desired, at the expense of said lessee." Held, that this provision required the lessee to return the premises in reasonably good condition for hotel use and not for hospital purposes, and, while the lease contained no covenant respecting the furniture, there was an implied agreement to return it in as good condition as when received except for loss or injury resulting from reasonable and ordinary hospital use, Schroth, Receiver, v. U. S. (1932), 74 Ct. Cl. damages, to be measured by the value of the 396. tracting officer for the Government defaulted in payment, withholding same on the ground that liquidated damages had begun to accrue, although the work was nearly completed and the aggregate retention of payments from time to time was greatly in excess of the value of the uncompleted portion. The contractor thereupon refused to proceed further. Held, that failure to keep up the monthly payments was a breach of the contract, for which the contractor was entitled to recover Default by Government.-Where a contract for supplying the Government a certain grade of hay provided that inspection and grading by civilian Federal bay inspectors prior to the contractor's tender of delivery would be accepted by the Government, refusal of the Government to comply with such provision constituted a breach of the contract. Edwards v. U. S. (1934), 80 Ct. Cl. 118. The Government may breach its contract the same as an individual, and, while it may not be required in equity to specifically perform its contract for a wrongful breach thereof, an adequate remedy at law has been provided by suit for damages in the Court of Claims. Boeing Air Transport v. Farley (App. D. C., 1935), 75 F. (2d) 765, 768. It is well settled that where a contractor is delayed by the Government in the prosecution of the contract work, he is entitled to recover as damages the expense incurred by him by reason of such delay which would not otherwise have been necessarily incurred. Phoenix Bridge Co. v. U. S. (1937), 85 Ct. Cl. 603. The elimination by the Government of a large and independent part of a Government construction contract was not a change in the drawings or specifications of the contract within contemplation of a provision of the contract for Government "changes in the drawings and (or) specifications" of the contract, but amounted to a cardinal change or alteration of the contract itself, and constituted a breach of the contract by the Government for which the contractor was entitled to its damages resulting therefrom. General Contracting and Construction Co. v. U. S. (1937), 84 Ct. Cl. 570. A contractor for service to the Government under a general appropriation is not charge able with knowledge of the state of the appropriation account; and where the Government suspends work under the contract because of exhaustion of the appropriation, it constitutes a breach of the contract, for which the contractor is entitled to damages sustained as a result thereof. Schuler & McDonald v. U. S. (1937), 85 Ct. Cl. 631. Default in partial payments.-A Construction contract provided for monthly payments as the work progressed. The con work performed, together with anticipated profits. Suburban Contracting Co. v. U. S. (1932), 76 Ct. Cl. 533. Where, in a Government contract, the Government fails to make progress payments in accordance with the contract, such failure constitutes a breach of the contract and entitles the contractor to damages resulting therefrom, including loss of profits. Discontinuance of work by a Government Contractor because of lack of funds resulting from the Government's failure to make progress payments in accordance with the contract requirements does not constitute a breach by the contractor. Whitbeck, Receiver, v. U. S. (1933), 77 Ct. Cl. 309. Delays caused by Government in general.-Where a contractor is delayed in the performance of his work and suffers actual losses that would not have been susfailure to observe its obligations under the tained except for the Government's delay and contract, he is entitled to recover therefor. Pope v. U. S. (1932), 75 Ct. Cl. 436. A contractor is not entitled to judgment for damage for delays where the contract precludes suit therefor. Knauff Co. v. U. S. (1933), 78 Ct. Cl. 423. The mere fact that the time for completion of the plaintiff's contract for Government construction work was extended because of delay caused by the Government does not relieve the Government of liability for damage sustained by plaintiff as a result of such delay. Karno-Smith Co. v. U. S. (1936), 84 Ct. Cl. 110. Where contractor is delayed by the Government in the prosecution of work under a contract, he is entitled to recover as damages the expenses and costs incurred by reason of such delays; and the Government is not relieved from liability by merely extending the contractor's time for the completion of the contract. See Phoenix Bridge Co. v. U. S. (1937), 85 Ct. Cl. 603; Plato v. U. S. (1938), 86 Ct. Cl. 665. Claims for damages resulting to a contractor because of delays on the part of the Government are not disputes which under the provisions of the contract are to be submitted to and decided by the contracting officer. Id. Delays due to change orders.When change orders are issued pursuant to contract, with an agreed price, the Government is not liable in damages for delays |